The NLRB has been the primary regulator of social media policies of employers.  The following are some of the NLRB’s rulings on employer policies concerning social media.  To read the entire comments by the NLRB on this topic, go here.

According to recent cases from the NLRB, an employer violates Section 8(a)(1) of the Act through the maintenance of a work rule if that rule “would reasonably tend to chill employees in the exercise of their Section 7 rights.” Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). The Board uses a two-step inquiry to determine if a work rule would have such an effect. Lutheran Heritage Village–Livonia, 343 NLRB 646, 647 (2004).

A rule is clearly unlawful if it explicitly restricts Section 7 protected activities. If the rule does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7
activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

Rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful. See University Medical Center, 335 NLRB 1318, 1320-1322 (2001), enf. denied in pertinent part 335 F.3d 1079 (D.C. Cir. 2003). In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful. See Tradesmen International, 338 NLRB 460, 460-462 (2002).

Some NLRB case examples are below:

1. Overbroad Rules on Communicating Confidential Information (Target Corp., Case 29-CA-030713)

The NLRB found that an instruction in an employee handbook that employees not “release confidential guest, team member or company information” would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves--activities that are protected by Section 7.

The Board has long recognized that employees have a right to discuss wages and conditions of employment with third parties as well as each other and that rules prohibiting the communication of confidential information without exempting Section 7 activity inhibit this right because employees would reasonably interpret such prohibitions to include information concerning terms and conditions of employment. See, e.g., Cintas Corp., 344 NLRB
943, 943 (2005), enfd. 482 F.3d 463 (D.C. Cir. 2007).

According to the NLRB, these provisions instructing employees not to share confidential information with coworkers are overbroad. Employees would construe these provisions as prohibiting them from discussing information regarding their terms and conditions of employment.

2. Overbroad Rules on Non-Public Information and Friending Co-Workers (General Motors, Case 07-CA-053570)

The NLRB found that employees were instructed to be sure that their posts are “completely accurate and not misleading and that they do not reveal non-public information on any public site.” The term “completely accurate and not misleading” was found to be overbroad because it would reasonably be interpreted to apply to discussions about, or criticism of, the Employer’s labor policies and its treatment of employees that would be protected by the Act so long as they are not maliciously false. Moreover, the policy does not provide any guidance as to the meaning of this term by specific examples or limit the term in any way that would exclude Section 7 activity.

The NLRB further found unlawful the portion of this provision that instructs employees not to “reveal non-public company information on any public site” and then explains that nonpublic information encompasses “[a]ny topic related to the financial performance of the company”; “[i]nformation that has not already been disclosed by authorized persons in a public forum”; and “[p]ersonal information about another [Employer] employee, such as . . . performance, compensation or status in the company.” Because this explanation specifically encompasses topics related to Section 7 activities, employees would reasonably construe the policy as precluding them from discussing terms and conditions of employment among themselves or with non-employees.

The section of the policy that cautions employees that “[w]hen in doubt about whether the information you are considering sharing falls into one of the [prohibited] categories, DO NOT POST. Check with [Employer] Communications or [Employer] Legal to see if it’s a good idea[,]” is also unlawful. The Board has long held that any rule that requires employees to secure permission from an employer as a precondition to engaging in Section 7 activities violates the Act. See Brunswick Corp., 282 NLRB
794, 794-795 (1987).

The NLRB also found that the Employer’s policy unlawfully prohibits employees from posting photos, music, videos, and the quotes and personal information of others without obtaining the owner’s permission and ensuring that the content can be legally shared, and from using the Employer’s logos and trademarks. Thus, in the absence of any further explanation, employees would reasonably interpret these provisions as proscribing the use of photos and videos of employees engaging in Section 7 activities, including photos of picket signs containing the Employer’s logo. Although the Employer has a proprietary interest in its trademarks, including its logo if trademarked, we found that employees’ non-commercial use of the Employer’s logo or trademarks while engaging in Section 7 activities would not infringe on that interest.

The NLRB found lawful, however, prohibitions on discussing information related to the “safety performance of [Employer] systems or components for vehicles” and “Secret, Confidential or Attorney-Client Privileged information.” Neither of these provisions refers to employees, and employees would reasonably read the safety provision as applying to the safety performance of the Employer’s automobile systems and components, not to the safety of the workplace. The provision addressing secret, confidential, or attorney-client privileged information is clearly intended to protect the Employer’s legitimate interest in safeguarding its confidential proprietary and privileged information.

The provision of the Employer’s social media policy instructing employees to “[t]hink carefully about ‘friending’ co-workers” is unlawfully overbroad because it would discourage communications among co-workers, and thus it necessarily interferes with Section 7 activity. Moreover, there is no limiting language clarifying for employees that it does not restrict Section 7 activity.

The NLRB also found unlawful the policy’s instruction that employees “[r]eport any unusual or inappropriate internal social media activity.” An employer violates the Act by encouraging employees to report to management the union activities of other employees. See generally Greenfield Die & Mfg. Corp., 327 NLRB 237, 238 (1998) and cases cited at n.6. Such statements are unlawful because they have the potential to discourage employees from engaging in protected activities. Here, the Employer’s instruction would reasonably be construed by employees as applying to its social media policy. Because certain provisions of that policy are unlawful, as set forth above, the reporting requirement is also unlawful.

3. Overbroad Rules on Privacy, Legal Matters, Online Tone (McKesson Corp., Case 06-CA-066504)

The NLRB found that the portion of the rule prohibiting disclosure of personal information about the Employer’s employees and contingent workers is unlawful because, in the absence of clarification, employees would reasonably construe it to include information about employee wages and their working conditions.

The NLRB also found that the prohibition on employees’ commenting on any legal matters is unlawful because it specifically restricts employees from discussing the protected subject of
potential claims against the Employer. The policy read as follows:

“Legal matters. Don’t comment on any legal matters, including pending litigation or disputes.”

The NLRB found that a rule in which the overall thrust of it is to caution employees against online discussions that could become heated or controversial, without further clarification of what is “objectionable or inflammatory,” could reasonably be construed as a rule to prohibit robust but protected discussions about working conditions or unionism.

Also, the rule that requires employees to “[g]et permission before reusing others’ content or images” is unlawful, as it would interfere with employees’ protected right to take and post photos of, for instance, employees on a picket line, or employees working in unsafe conditions.

They also found that a rule encouraging employees “to resolve concerns about work by speaking with co-workers, supervisors, or managers” is unlawful. An employer may reasonably suggest that employees try to work out concerns over working conditions through internal procedures. However, by telling employees that they should use internal resources rather than airing their grievances online, the NLRB found that this rule would have the probable effect of precluding or inhibiting employees from the protected activity of seeking redress through alternative forums.

4.  Employer’s Revised Social Media Policy – With Examples of Prohibited Conduct – Is Lawful (Walmart, Case 11-CA-067171)

As explained above, rules that are ambiguous as to their application to Section 7 activity and that contain no limiting language or context to clarify that the rules do not restrict Section 7 rights are unlawful. In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are not unlawful.

Applying these principles, the NLRB concluded that the Employer’s revised social media policy is not ambiguous because it provides sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rules to prohibit Section 7 activity. For instance, the Employer’s rule prohibits “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.” We found this rule lawful since it prohibits plainly egregious conduct, such as discrimination and threats of violence, and there is no evidence that the Employer has used the rule to discipline Section 7 activity.

Similarly, the NLRB found lawful the portion of the Employer’s social media policy entitled “Be Respectful.” In certain contexts, the rule’s exhortation to be respectful and “fair and courteous” in the posting of comments, complaints, photographs, or videos, could be overly broad.

The rule, however, provides sufficient examples of plainly egregious conduct so that employees would not reasonably construe the rule to prohibit Section 7 conduct. For instance, the rule counsels employees to avoid posts that “could be viewed as malicious, obscene, threatening or intimidating.” It further explains that prohibited “harassment or bullying” would include “offensive posts meant to intentionally harm someone’s reputation” or “posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.” The Employer has a legitimate basis to prohibit such workplace communications, and has done so without burdening protected communications about terms and conditions of employment.

The Board also found that the Employer’s rule requiring employees to maintain the confidentiality of the Employer’s trade secrets and private and confidential information is not unlawful. Employees have no protected right to disclose trade secrets. Moreover, the Employer’s rule provides sufficient examples of prohibited disclosures (i.e., information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, or other internal business-related communications) for employees to understand that it does not reach protected communications about working conditions.

To see the policy from the above case, where the NLRB has found that it is lawful, go to the Handbooks-Policies section in this web site.